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H, Establishment of the Union

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Establishment of the Union

When the Constitutional Convention met in Philadelphia in 1787, it was unclear whether the government that would emerge from its deliberations would include a national court system or a supreme court. All the delegates acknowledged that a national government more powerful than that operating under the Articles of Confederation had to be empowered with some kind of lawmaking capability and that national laws would have to be enforced by some court system. But delegates committed to state power and suspicious of national authority considered the existing *state courts fully capable of enforcing national laws. Nationalists like James *Madison, on the other hand, envisioned a national judiciary that would not only enforce national law but also supervise the state judiciaries.

Creating Judicial Power.

The convention delegates reconciled these divergent views in several ways in *Article III of the Constitution: They created a Supreme Court, giving it original and *appellate jurisdiction but subjecting appellate jurisdiction to whatever “Exceptions” and “Regulations” Congress might choose to make. The convention permitted but did not require the creation of *lower federal courts. The framers defined the “judicial Power of the United States” in terms of nine categories of jurisdiction over parties or causes, and they provided the protection of tenure during good behavior and undiminished pay for federal judges (see judicial power and jurisdiction).

The First Congress fleshed out the skeletal authorizations of Article III in the *Judiciary Act of 1789, creating a Supreme Court of six judges and a three-tiered federal judicial structure. Congress established a United States district court in each state, plus circuit courts, consisting of the district judge and two justices of the Supreme Court on circuit, that had both *original and appellate jurisdiction (see circuit riding). In the act’s celebrated section 25, Congress conferred on the Supreme Court appellate jurisdiction over *federal questions arising in state-court litigation, thus creating a potent guarantee of national power that became a focus of contention not resolved until the *Civil War.

In the first decade of its existence, the Supreme Court was held in low esteem by most Americans—Congress had originally neglected even to supply it with a chamber; the *chief justiceship went begging for nominees more than once. Yet in this unpromising atmosphere, the fledgling Court managed to establish precedents of lasting importance. It began to define the contours of federal judicial power, vis-à-vis both the other branches (the problem of *separation of powers) and the states (the problem of *federalism).

One of the most vital tasks facing the early Court was to define what the judicial function was for the federal courts. In *Hayburn’s Case (1792), various federal judges declined to act in their official judicial capacity as claims commissioners resolving controversies over veterans’ pensions. Chief Justice John *Jay, on circuit, instructed Congress that the political branches could not “constitutionally assign to the judicial any duties but such as are properly judicial” (p. 410). In 1793, the Court, speaking through Jay, declined to render *advisory opinions on questions President George *Washington asked it concerning interpretation of the 1778 Franco-American Treaty. In a letter to Washington on 8 August, Jay referred to the “lines of separation drawn by the Constitution between the three departments of government” and advised the president that the justices were “judges of a court in the last resort.” Finally, in 1796 the Court implicitly claimed the power of *judicial review—that is, the power to declare an act of Congress unconstitutional. In *Hylton v. United States, three of the justices sitting en banc upheld a federal carriage tax as not being a “direct Tax” under Article I, section 9—and in so doing implicitly assumed the power of passing on the question of constitutionality.

As the Court established its role vis-à-vis Congress and the president, it also attempted to extend its authority over the states. But the mixed results that greeted this effort—as demonstrated in *Chisholm v. Georgia—cautioned that questions of federalism would prove much more problematic than questions of the separation of powers. The Constitution granted the Court jurisdiction over controversies “between a State and Citizens of another State,” so when citizens of South Carolina brought suit against Georgia under the Supreme Court’s original jurisdiction (because a state was a party) in a contractual claim for goods supplied during the Revolutionary War, the Court’s assumption of jurisdiction seemed unexceptionable. But this implicated the extremely sensitive questions of confiscation and debt repudiation by the states during the war and seemed to contradict assurances made by Federalists during the ratification struggle that no state would be sued without its consent. The *Eleventh Amendment, withdrawing such jurisdiction, was immediately proposed and ratified, cautioning the Court that the states would jealously protect their interests against the federal judiciary.

(p. 434) If spokesmen for state power expected that the Court would timorously avoid other confrontations in the future, they were soon disappointed. In *Ware v. Hylton (1796), the justices returned to the touchy subject of state debt repudiation, voiding a 1777 Virginia statute that sequestered debts owed by citizens of the newly independent state to British creditors on the grounds that it conflicted with the Treaty of Paris (1783). Justice Samuel *Chase, writing for the Court, not only voided the statute for incompatibility with treaty obligations but also hinted that, the treaty aside, the statute was void under *higher-law principles. Despite noisy criticism, the Ware result was not overturned by amendment, but the states remained sullenly hostile to the Court when its power impinged on what they saw as their sovereignty (see state sovereignty and states’ rights).

The early Court began exploring the theoretical bases of *judicial review. Justice William *Paterson, in a grandiloquent jury charge on circuit in Van Horne’s Lessee v. Dorrance (1795), asserted that state legislatures were subordinated to “the principles of the social contract, or of the constitution” (p. 312). He and his colleagues returned to the question in *Calder v. Bull (1798), an appeal from a Connecticut statute that set aside a probate decree and granted a rehearing. The Court declined to void the statute on *ex post facto grounds, but Chase asserted in sweeping dicta that “vital principles in our free republican governments” would void state legislation even if no specific principle of the state constitution forbade it (p. 388) (see obiter dictum). Justice James *Iredell demurred from this reliance on *natural law, arguing that “the ideas of natural justice are regulated by no fixed standard” and provided judges with no legitimate and universally accepted criteria for holding state statutes unconstitutional (p. 399).

From a nationalist’s point of view, the 1789 *Judiciary Act was defective in several respects. It conferred only a fraction of the *federal-question jurisdiction authorized by the Constitution, and it imposed onerous circuit riding responsibilities on the justices, some of whom were becoming aged and infirm and all of whom had better things to do than ride circuits a thousand miles away from the national capital. Determined to ensconce their political ideology in the federal courts after they were repudiated at the polls in 1800, Federalists enacted the *Judiciary Act of 1801, which conferred full federal-question jurisdiction and enlarged both diversity and *removal jurisdiction. It expanded the federal judiciary by creating six new circuit courts staffed by their own judges, thus eliminating the burden of riding circuit. Jeffersonian Republicans, outraged at this eleventh-hour power grab, repealed the 1801 act within a year, and Chief Justice John *Marshall prudently upheld the constitutionality of the repeal in *Stuart v. Laird (1803).

The Marshall Court.

Though the accomplishments of the Court in its first decade were significant, they had really not secured the place of the judiciary in American government. That was left to Chief Justice John Marshall, who was appointed in 1801 and served until his death in 1835. The generation of Marshall’s tenure seems divided, in retrospect, into two periods. The first, lasting until 1824, was a time of expansive constitutional interpretation, when Marshall and his colleagues boldly elevated the stature and power of the Supreme Court and the federal judiciary generally. The second period, the decade after 1824, was by contrast a period of contraction and compromise.

Expansion of the Court’s Power, 1801–1824.

In order to assure the Court’s position as a coequal partner with Congress and the president in the tripartite structure of the federal government, it was necessary for Marshall to establish the power of judicial review: the authority to determine that an act of Congress or the executive branch was a violation of the Constitution. Alexander *Hamilton had claimed this power for the federal courts in The *Federalist no. 78, but the power was not conceded by the American legislatures as the new century dawned.

Drawing extensively on Federalist 78, Marshall conjured up the doctrine of judicial review in *Marbury v. Madison (1803). Adroitly criticizing the new administration of President Thomas *Jefferson yet leaving the Court invulnerable to political attack, Marshall reprimanded Secretary of State James Madison for refusing to deliver a justice of the peace commission to William Marbury. He went on to hold that the Supreme Court lacked power to provide the relief that Marbury sought, a writ of *mandamus, because the Judiciary Act of 1789, which authorized it, unconstitutionally granted to the Court a power not authorized by the Constitution.

Marshall justified this result by holding that when the Court is asked to determine whether a statute is unconstitutional, it merely determines which of two laws, statute and Constitution, is of controlling authority. Implicit in this reasoning was the crucial assumption that the Constitution is a law, to be administered by courts like any other law. But that idea produced Marbury’s central ambiguity: When exercising the power of judicial review, does the Court perform a unique function of monitoring the conformity of the other branches to the constitutional mandate, or is it merely doing what courts normally do—that is, applying a law to resolve a dispute? That ambiguity persists to the present day. Marshall also suggested a (p. 435) distinction that assumed great significance in the twentieth century between the “ministerial” responsibilities of the other branches, which courts could force them to perform, and “political” or discretionary powers, which courts cannot compel (see political questions).

The political implications of Marshall’s assertion of power were not lost on Jefferson. They confirmed for him the suspicion he had borne since his election that a Federalist-dominated judiciary would deprive him of the fruits of the Republican victory in what he called “the Revolution of 1800.” Repeal of the Judiciary Act of 1801 was one response; another was the powerful threat of impeaching obnoxious federal judges. Jeffersonian Republicans began their political assault on the federal judiciary with the successful but meaningless *impeachment of District Judge John Pickering, who at his trial in the Senate was found to be insane. Jefferson’s party then impeached Samuel Chase of the Supreme Court, who on circuit had presided over prosecutions under the *Sedition Act of 1798 with unbecoming zeal and severity. Later, in some *grand jury charges, Chase had delivered intemperate and antidemocratic political harangues about the “mobocracy” that would be grossly improper by modern standards. But Jeffersonians could not muster the necessary two-thirds vote in the Senate to convict Chase, thus leaving the judiciary immune from impeachment used exclusively as a political weapon by a dominant party determined to purge the federal bench of its opponents.

The president was further frustrated by the failure of the treason prosecution of his erstwhile vice president, Aaron *Burr, in 1807. The motives behind Burr’s mysterious 1806 military expedition on the Ohio River remain obscure. But Jefferson zealously pursued his political enemy by an indictment for treason, only to be frustrated by Marshall, sitting as chief judge on circuit in Virginia. In United States v. Burr (1807), Marshall construed the treason clause of Article III in a way that erected a high threshold for all treason prosecutions, preventing resort to such prosecutions used as a political device and burying Jefferson’s attempt to import the doctrine of “constructive treason” into American law.

The Marshall Court exerted a major influence on economic development in the United States. In *Fletcher v. Peck (1810), it gave a broad reading to the *Contracts Clause of Article I, which for most of the century provided the doctrinal basis for the courts’ supervision of legislative regulation. Fletcher involved a state conveyance of lands that the Georgia legislature subsequently rescinded on the grounds that the grant was contaminated by bribery. Marshall construed the original grant to be a *contract, thus extending the reach of the clause to contracts in which the state itself was a party and to contracts already executed. It is questionable whether the framers anticipated either reading of the clause. Nevertheless, Fletcher was the first in a line of cases that made the Contracts Clause an inhibition on state legislative power.

Marshall expanded the clause in *Dartmouth College v. Woodward (1819) to protect corporate charters from rescission or modification by the state. In Terrett v. Taylor (1815), Justice Joseph *Story had devised a major new concept in American law, that of the *private corporation. Before the nineteenth century, the corporation served chiefly as a vehicle for public enterprises such as municipalities, charitable institutions, transportation facilities (roads, bridges, ferries), and trading companies. Purely private, profit-oriented enterprise was carried on under other forms, such as partnerships. But on the eve of the Industrial Revolution, a new legal entity was needed to permit entrepreneurs to amass capital without the double risk imposed by the partnership form—unlimited individual liability for enterprise debts and the termination of the enterprise by the death or withdrawal of a partner. The corporation avoided those risks, but investors sought assurances that the legislature would not subsequently modify corporate charters to their disadvantage. Story attempted to provide that guarantee in Terrett, but he did so only on the vague higher-law principles of Calder v. Bull.

In the Dartmouth College case, Marshall shifted the protection for corporations to a more certain textual base, the Contracts Clause, holding that the clause prohibited states from subsequently modifying the terms of the “contract” between them and investors, namely, the corporate charter. Dartmouth College has been hailed, somewhat extravagantly, as the midwife of corporate *capitalism in the United States. The case was also significant in that Marshall dropped Calder’s higher-law concepts completely from the Court’s jurisprudence, henceforth relying solely on some specific clause of the Constitution. This approach gave the Court’s expanding role in supervising legislatures a more secure and legitimate foundation.

A different kind of corporation—a bank—provided the subject of one of the Marshall’s Court’s most influential decisions, *McCulloch v. Maryland (1819). Marshall again relied on arguments originally made by Alexander Hamilton and elevated them to the status of constitutional doctrine. When Congress originally chartered the Bank of the United States in 1791, President George Washington sought his Cabinet’s advice as to whether Congress had constitutional authority to do so. Thomas Jefferson, Washington’s secretary of state, argued that it did not, articulating for the first time the strict constructionist arguments (p. 436) that have assumed such a prominent place in present-day constitutional debate. Hamilton, the secretary of the treasury, confidently claimed the authority for Congress, holding it to be implied from other express powers granted Congress in Article I, such as the power to raise armies, which necessarily implied a power to pay them and to handle the funds in any way not explicitly prohibited by the Constitution.

After Congress chartered the second Bank of the United States in 1816, southern and western states reacted to it with vociferous hostility because they believed that the bank inhibited the growth of capital in their regions and that it engaged in fraudulent and speculative fiscal practices. Accordingly, they either forbade its operations in their jurisdictions or taxed it prohibitively. The bank appealed a Maryland tax to the Supreme Court, raising again the question that Jefferson and Hamilton had debated in 1791. In McCulloch, Marshall adopted Hamilton’s arguments, upholding Congress’s power to charter a bank despite the absence of express warrant in the Constitution. The power could be implied, Marshall held, and Congress had wide latitude under the “necessary and proper” clause of Article I to effect its enumerated powers. He did concede, though, that Congress could not enact legislation on the mere “pretext” of exercising its enumerated powers (see implied powers).

Marshall then went on to hold that the states could not constitutionally levy a tax on an instrumentality of the federal government, observing that “the power to tax involves the power to destroy” (p. 431). This holding, subordinating state regulatory power to the supervision of the federal courts, provoked a vigorous denunciation from Virginia political and judicial leaders. The reaction demonstrated to thoughtful observers such as Madison how widely the North and South were diverging from each other in their constitutional theory.

The Constitution of 1787 was a sheaf of compromises, the most fundamental involving the nature of the Union it created. One view, later expressed by Jefferson and Madison in the Virginia and Kentucky Resolutions of 1798 and 1799, held that the states remained substantially sovereign, creating a national government of limited and delegated powers while reserving to themselves all residual powers of sovereignty. The textual basis of this position was the *Tenth Amendment. The contrasting position maintained that, as Marshall put it in McCulloch, “the government of the Union, though limited in its powers, is supreme within its sphere of action” (p. 405). The textual source for this view was the Supremacy Clause of Article VI.

These differing emphases clashed before the Court in at least two other major decisions besides McCulloch: *Martin v. Hunter’s Lessee (1816) and *Cohens v. Virginia (1821). Arguments before the Court were supplemented by anonymous newspaper polemics written by Marshall and Chief Judge Spencer Roane of the Virginia Supreme Court of Appeals, tracing in prolix argument the implications of the Constitution’s basic ambiguity concerning federalism. In Martin, Justice Story held that section 25 of the Judiciary Act of 1789 was constitutional and that therefore decisions of state supreme courts could be appealed to the United States Supreme Court. Because the case involved lands in Virginia’s Northern Neck and was appealed from Roane’s court, Virginians condemned the Supreme Court, Story’s reasoning, and section 25. Three years later, McCulloch, with its assertion of federal supremacy, inflamed their resentments further. So when Marshall, in Cohens, reaffirmed Story’s highly nationalist position, the Virginians, defending the state-sovereignty position of 1798–1799, demanded repeal of section 25 or a constitutional amendment that would subordinate the Court’s authority to state power.

A related conflict over national power came before the Court in the last great case of the Marshall Court’s expansive phase, *Gibbons v. Ogden (1824). Marshall there relied on a strained and expansive reading of a federal coastal licensing statute to strike down a New York statute that granted monopoly of an interstate ferry route. The constitutional basis of his position was the Commerce Clause of Article I, here given its earliest—and an extremely broad—interpretation. Gibbons is the origin of the pervasive federal regulatory power under the Commerce Clause that dominated the Court’s assumptions about federalism after 1937 (see commerce power).

In addition to its implications for federalism, Gibbons and its state-court antecedents (e.g., Livingston v. Van Ingen, 1812) also reflected a controversy about the future of American economic development. On one side were protagonists of monopoly, like New York’s Chief Justice James Kent (later joined by Story), who believed that the law had to encourage investors with exclusive and monopolistic grants to entice their risk capital into promoting development. Other jurists, like New York’s Chancellor John Lansing, took the opposing view, believing that competition and not monopoly was the surest guarantor of economic advance. Although it struck down a monopoly, Marshall’s Gibbons opinion did not really endorse the latter view.

The Marshall Court’s Retreat, 1824–1835.

Even during the expansive phase of his tenure, Marshall had respected the constraints that political realities (p. 437) imposed on the scope of the Court’s action. For example, he went along with Justice William *Johnson’s opinion in United States v. *Hudson and Goodwin (1812) denying federal courts common-law criminal jurisdiction, a prudent approach given the sensitivity of this issue. In line with this view, the Court held in *Wheaton v. Peters (1834) that there was no general *federal common law. But a number of events that occurred after the War of 1812 forced on Marshall a more inhibited approach to questions involving federal judicial power. The depression of 1819 coincided with the Missouri Controversy, which brought in its train a series of crises to the internal security of the slave states. The southern states’ affirmation of the postulates announced in the Virginia and Kentucky Resolutions and their hostility to federal jurisdiction forced on Marshall the concessions to state authority that characterized his later years.

Insolvency legislation provides a good example of the Court’s retreat in the 1820s. Article I of the Constitution empowers Congress to enact *bankruptcy legislation, and it prohibits states from impairing the obligation of contracts. These clauses came together in *Sturges v. Crowninshield (1819), when Marshall held that the Bankruptcy Clause did not imply an exclusive federal power. It did not prevent the states from enacting bankruptcy laws, but the Contracts Clause did prohibit insolvency laws that applied to contracts made before their passage. This left a question open: Could state insolvency laws apply to debts contracted after their enactment? In *Ogden v. Saunders (1827), the Court held that such application of insolvency laws to future contracts did not impair the obligation of contracts, a necessary concession to state power. Marshall, for almost the only time in his tenure of thirty-four years, dissented.

And so it went throughout his last decade. Dogged by the movement to repeal section 25, Marshall prudently threw concession after concession to his political enemies. In *Willson v. Blackbird Creek Marsh Co. (1829), a mere five years after Gibbons, Marshall held that state legislation that authorized the damming of a navigable waterway was not invalid, even though it impinged on a route of interstate commerce. And when Marshall’s prudence lapsed, political retaliation reminded him of the limits of the Court’s power. The *Cherokee Cases (Cherokee Nation v. Georgia, 1831, and Worcester v. Georgia, 1832) demonstrated that when the states enjoyed the sympathetic support of the political branches of the federal government, the Supreme Court was impotent in its isolation. Marshall had attempted to extend some measure of protection to *Native Americans from the hostility and rapacious land-hunger of Georgia whites, to no avail. President Andrew *Jackson may never have uttered the perhaps apocryphal remark attributed to him—“The Chief Justice has made his decision; now let him enforce it”—but the president’s sentiment expressed the wisdom of Hamilton’s observation in Federalist 78 that the Court would always require the support of the political branches because it controlled neither army nor treasury. The most significant Marshall concession to state power came in *Barron v. Baltimore (1833), in which Marshall held that the *Bill of Rights was a limitation only on the federal government, not on the states.

The Taney Court.

*Historians have long discredited the contemporary idea that Roger B. *Taney’s accession to the chief justiceship signaled a revolutionary change in the values and direction of the Supreme Court. Modern scholars have emphasized the continuities between the Marshall and Taney Courts: both were dedicated to the ideals of limited government as a security for individual liberty; both respected the need for effective authority in the federal and state governments to ward off the evils of enfeebled governance; both valued the opportunities that capitalism provided and were determined to use the law to remove impediments to realizing those opportunities; neither sought to disturb the social order in any significant way; and both expanded and used federal judicial power. But the Court of 1837 was undoubtedly different from its predecessor of 1801. For one thing, it now consisted of nine justices. Five of them were Democrats appointed by President Andrew Jackson: Taney, John *McLean, Henry *Baldwin, James M. *Wayne, and Philip P. *Barbour. Four members of the Court, including Taney, were from slaveholding states, while only one, McLean, could reasonably be suspected of harboring antislavery leanings. Conservatives, including Story, James Kent, and the anti-Jacksonian Whig press, saw portents of revolution in the new Court and its chief justice, mainly because of three major opinions in Taney’s maiden term.

The most far-reaching of these was *Charles River Bridge v. Warren Bridge (1837), which bundled together a remarkable array of constitutional questions, including the power of a state legislature to control economic development, the place of monopolies in American economic life, the impact of technological change on the law, and the role of the Supreme Court in supervising state public policy. The Massachusetts legislature chartered a bridge company, giving it the power to collect tolls but saying nothing about an exclusive right to carry traffic over the Charles River. A generation later, responding to the need for increased traffic-carrying capacity between Boston and its northern hinterland, the legislature chartered another bridge, which was eventually to become a free bridge, thus destroying the value of the original (p. 438) bridge’s charter. The old bridge insisted that its charter contained an implied monopoly and that creation of a new free bridge destroyed the *vested rights it enjoyed in that monopoly.

Taney, for the Court, rejected that argument, relying on a course of reasoning that Marshall had laid out seven years earlier in *Providence Bank v. Billings (1830). Remaining securely within the constitutional boundaries of the Dartmouth College case, Marshall and Taney held that extraordinary privileges, such as an exemption from taxation or monopoly of a bridge site, may not be read into a corporate charter by implication (see state taxation). The state legislature may grant such privileges if it wishes, but it must do so explicitly. Any other rule, Taney warned, would permit older and obsolete technologies to impede material progress. Story dissented, insisting that the effect of Taney’s instrumentalist opinion was to discourage investors by frustrating their expectations. The Court’s position implicitly endorsed the competitive, rather than the monopoly, model of economic development that had been at issue in the Gibbons case.

Judicial Statesmanship.

Taney’s most enduring legacy is found in cases that involved the scope of federal judicial power. This would have surprised his contemporary conservative critics, who knew him only as the ghost-author of Jackson’s Bank veto message of 1832. Taney, then the attorney general, had there maintained that the Supreme Court’s opinion on a constitutional question, such as the power of Congress to charter a bank, was not binding on the other branches of government, which enjoyed a coordinate authority to resolve constitutional questions for themselves. (This view would be later echoed by other presidents, most notably Abraham *Lincoln, who found certain Supreme Court holdings irksome.)

Throughout his twenty-seven-year tenure on the Court, Taney strove to establish a balance between state regulatory power and the authority of the federal courts, seeking to enhance both. One of his early opinions, *Bank of Augusta v. Earle (1839), demonstrated this tendency of his judicial statesmanship. The issue presented was whether a corporation could do business within any state other than the one that chartered it. Taney held that a corporation might do business in any state consenting to its presence. That consent would be implied unless the state took some positive steps to exclude foreign corporations. Taney thus avoided the evils of making corporations the protégés of federal courts, which would have heightened state animosities toward both courts and companies, and of imposing an unnecessary inhibition on interstate enterprise by the federal system.

In *Louisville Railroad Co. v. Letson (1844), the Taney Court discarded an undesirable jurisdictional doctrine originating in *Bank of the United States v. Deveaux (1809), which had held that for diversity purposes, all the shareholders of a corporation that was a party to a suit in a federal court must be diverse from the other party. Especially where a corporation was the other party, this effectively shut the doors of federal courts to corporate litigants, an unnatural constraint on federal jurisdiction that became less desirable as interstate business expanded. In Letson, the Court scuttled Deveaux by holding that, for diversity purposes, a corporation is deemed a citizen only of the state in which it was incorporated. This expanded the jurisdiction of federal courts and opened their doors to corporations seeking to flee the more hostile environment of state courts presided over by elected judges.

Taney expanded the political-question doctrine in *Luther v. Borden (1849), one of his longest-lived opinions. Arising out of the Dorr Rebellion of 1842 in Rhode Island, Luther raised the question whether federal courts had any role in enforcing the clause of Article IV that empowered the federal government to “guarantee to every State in this Union a Republican Form of Government” (see guarantee clause). Taney held that they did not, such issues presenting political questions allocated by the Constitution to Congress or the president for resolution. The political-question doctrine remains today one of the most influential monitors of federal jurisdiction, reflecting the creative spirit of Taney’s jurisprudence.

The Supreme Court under Taney did not hesitate to strike down an exercise of state power that it deemed pernicious, as it did in *Gelpcke v. Dubuque (1864), the last major case of Taney’s tenure. The case arose when out-of-state bondholders faced state repudiation of public indebtedness. The Court refused to be bound by a state supreme court construction of state constitutional provisions when it believed that the state court’s reading deprived investors of rights protected by the federal Constitution.

One of the most salient characteristics of the Taney Court, and one of the few that set it off from its predecessor, was its keen sensitivity to the impact of technological change on the law. Charles River Bridge displayed that sensitivity; so did *West River Bridge v. Dix (1848), in which the Court ratified the doctrine of *eminent domain and permitted a state to revoke a bridge franchise on payment of *just compensation. In *Genesee Chief v. Fitzhugh (1852), the Court repudiated another Marshall Court precedent that had confined the *admiralty jurisdiction of federal courts to tidal waters. Although this early ruling conformed to English admiralty (p. 439) doctrine, it was out of place in the geographic setting of the United States, with its vast river systems and the Great Lakes, “inland seas” as Taney called them. In place of the tidewater doctrine, Taney adopted the navigability test for federal admiralty jurisdiction, thus extending federal judicial authority throughout the inland waterways. Both decisions reflected the impact of a new technology, the external-combustion engine, on law. Eminent domain facilitated the expansion of railroads, while Genesee Chief mirrored the influence of steam navigation.

Commerce Clause Decisions.

A concomitant of technological change was the expansion of interstate commerce, and that in turn posed the question of how far federal courts should encourage and monitor the national market. The enigmatic case of *Swift v. Tyson (1842) presented the Court with an opportunity to expand its supervision of the economy and thus to extend federal power considerably. Section 34 of the Judiciary Act of 1789 made state law the rule of decision in federal courts in diversity cases. The question presented in Swift was whether state law included decisional law, that is, the *common law evolved by the state courts. Story, writing for a unanimous Court, held that in commercial law cases it did not, the federal courts being free to select rules of substantive law from “the general principles and doctrines of commercial jurisprudence” (p. 2). Story hoped thereby to encourage the development of a uniform body of national commercial law, with federal courts assuming a leading role in discovering and declaring its substantive content. Over the next century, Swift proved to be the basis for an ever-widening expansion of federal jurisdiction, until it was repudiated as unconstitutional by Justice Louis D. *Brandeis in *Erie Railroad v. Tompkins (1938).

Cases involving the Commerce Clause provide a striking contrast with the creativity and statesmanship displayed by the Taney Court in other areas. Antebellum Commerce Clause cases, with one exception, present a record of frustration and confusion. The Court got off to a compromised start in one of the other major opinions of Taney’s first term, Mayor of *New York v. Miln (1837), which upheld the validity of a state law requiring the captain of a vessel carrying immigrants to provide a manifest containing information about them, the state’s purpose being to exclude diseased and insane foreigners. Justice Barbour upheld the state’s authority on the basis of its “exclusive” *police power, the general authority of a sovereign to regulate for the health, safety, welfare, and morals of its people. But this holding evaded rather than resolved the question of the exercise of the police power when it conflicted with an actual or dormant regulation of interstate commerce by Congress. The Court proved unable to provide usable Commerce Clause doctrine in the *License Cases (1837) and the *Passenger Cases (1849), which presented similar questions. The justices produced nine opinions in the former, eight in the latter, a sure sign of profound doctrinal confusion and unhealthy instability.

The Slavery Question.

The cause of this instability, usually hidden behind the facade of opinions, was *slavery. The southern justices, led by Taney, feared that an acknowledgment of a broad federal commerce power might threaten certain aspects of slavery, notably the interstate trade in slaves. There is no evidence that in doing so the southern justices were motivated by the conclusion of modern historians that the interstate slave trade was essential to the vitality and even the long-term existence of slavery in both the old and new slave states. The southerners’ attention was fixated on another problem, the worldwide movement to abolish slavery and the threat that movement posed for the internal security of slavery at home. Thus, they bristled at suggestions that Congress could exercise any authority, even indirect or benign, over any aspect of slavery. Most Commerce Clause cases presented just such a possibility.

The Court did achieve one breakthrough in this area, however, in *Cooley v. Board of Wardens (1852), by redefining the problem and temporarily distancing itself from the specter of abolition. Cooley involved pilotage fees levied in the port of Philadelphia, which were attacked as an interference with interstate and foreign commerce. Justice Benjamin R. *Curtis upheld the fees on the basis of a distinction between subjects of regulation that were inherently local (and thus appropriate for *state regulation of commerce) and those that were national in scope, which were reserved to Congress. Vague though this formula was, Cooley provided the basis for subsequent allocations of authority between states and Congress in questions of commerce regulation (see selective exclusiveness).

Slavery proved to be the cancer of the Constitution. The framers had incorporated protections for slavery, direct and indirect, in ten provisions of the Constitution, but they assumed that the federal government would have no responsibilities concerning it, except for the one specified matter of the international slave trade. The Marshall Court, sensing the danger and probable futility of becoming involved in slavery matters, managed to avoid rendering any significant decisions on the subject. Taney and several of his colleagues not only lacked the prudence of their predecessors but also were determined to mold public law to protect slavery and suppress all threats to its security and (p. 440) expansion. The result was the greatest disaster the Supreme Court has ever inflicted on the nation.

The conflict over slavery intensified after 1830. Demonstrating the validity of Alexis De Tocqueville’s dictum that sooner or later all political controversies in America end up in the courts, both sides in the controversy began litigating—in both state and federal courts—legal questions involving “the peculiar institution.” The first major issues to come before the Supreme Court were *fugitive slaves and personal liberty laws, in *Prigg v. Pennsylvania (1842). The lineup of opinions in Prigg was confusing; even today scholars debate what the case really determined, and a dictum by Story, who wrote for the Court on several points, is often wrongly taken to be the holding of the Court. Nevertheless, the result in Prigg was the invalidation of existing state laws that interfered with procedures under the 1793 federal Fugitive Slave Act for the capture and rendition of fugitive slaves. Taking advantage of a loophole suggested by Story in a dictum, however, several Northern states quickly enacted new personal liberty laws that avoided the vices defined in Prigg; these generally prohibited the use of state officials and facilities in fugitive recaptures.

The problem of fugitive slaves returned to the Court in different guise in *Jones v. Van Zandt (1847), in which Justice Levi *Woodbury, a New Hampshire Democrat, sustained the constitutionality of the Fugitive Slave Act and its provision for civil penalties against persons who assisted in the liberation of a fugitive. Woodbury extolled the slavery clauses of the Constitution as “sacred compromises.” He also dismissed antislavery suggestions that a judge must refuse to enforce an immoral law on the positivist grounds that a judge swears to uphold the law as given, not to disregard law because it offends his moral views.

The slavery controversy entered an intensified and terminal phase with enactment of the Compromise of 1850 and the Kansas-Nebraska Act of 1854. The violent political reactions to those two efforts to impose a legislative solution on the slavery crisis led some to seek a judicial resolution instead. Taney was eager to oblige. Dred *Scott v. Sandford (1857) came to the Supreme Court from a decision of a federal circuit court in Missouri in a protracted freedom suit holding a Missouri African-American, Dred Scott, his wife, and their two daughters to be slaves under Missouri law, despite having been taken by their owner to a free state and a territory designated free under the Northwest Ordinance of 1787. By the time it reached the Supreme Court, Dred Scott had become politicized, for it raised the question of Congress’s power to control the spread of slavery into the *territories. Not only counsel on both sides, but most of the justices of the Supreme Court as well, sought a final judicial determination of the question, in the fatuous expectation that a pronouncement by the Court could quell the entire slavery controversy. All nine justices wrote opinions in the case, but Taney’s must be taken as that of the Court; McClean and Curtis dissented.

Taney began with a procedural question that had far-reaching substantive implications: Could a person of African descent, whether slave or free, be a “citizen” for purposes of the grant of diversity jurisdiction in Article III? If that question were answered in the negative, then Scott’s suit was not within the jurisdiction of federal courts and ought to have been dismissed (see citizenship). But with the recklessness that characterized his handling of all slavery questions, Taney refused to end discussion at that point; he gratuitously went on to extrapolate from his discussion of the meaning of “citizen” the historically unfounded conclusions that blacks could never become members of the national body politic (although he conceded with distaste that a misguided state might make them into citizens.) It was here that he uttered the statement that drove his reputation into obloquy: Blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect” (p. 407).

Taney then went on to consider the power of Congress over slavery in the territories. If Congress could not prohibit slavery in the territories, then a slave could not be made free by being taken into a territory, as Scott had been, even if Congress had purported to abolish slavery there. Taney held that Congress lacked such power, thereby depriving the Republican party of the central plank in its platform. At three points in his poorly reasoned opinion, Taney endorsed the extremist constitutional position that had been evolved by John C. Calhoun and his acolytes since 1837: Congress not only could not abolish slavery in the territories; it had to protect and promote it there. He also suggested in passing that the *Fifth Amendment’s Due Process Clause protected the rights of slave owners in the territories. Many have seen this as the sudden appearance of substantive *due process, but this is reading more into Taney’s brief and offhand allusion than he intended. Taney also gratuitously rejected the constitutional validity of the Northern wing of the Democratic Party, encapsulated in the slogan “Popular Sovereignty,” by holding that Congress could not authorize a territorial government to abolish slavery (see territories and new states).

The Dred Scott decision touched off a political firestorm, but Taney remained obstinately indifferent to the damage he had done to the Court’s (p. 441) reputation and to the process of constitutional adjudication. Two years later, in *Ableman v. Booth (1859), he upheld the constitutionality of the Fugitive Slave Act of 1850 in dictum. He condemned the efforts of the Wisconsin Supreme Court to free an abolitionist held under that statute as well as its disregard of an order of the U.S. Supreme Court. A case coming to the Supreme Court from the New York Court of Appeals, Lemmon v. The People (1860), might have provided it with an opportunity of forcing slavery into the free states as it had forced it into the territories (a possibility predicted by Lincoln in 1858), but the coming of the war aborted that possibility.

The Court played only a peripheral role during the Civil War, not because it was abashed by the reaction to Dred Scott but because the Court’s significance in resolving great questions of public policy normally recedes when the United States is immersed in total *war, as also happened in *World War I and *World War II. It did, however, by a 5-to-4 margin, uphold the legitimacy of Lincoln’s response to secession in the *Prize Cases (1863). Apart from that, the Court’s wartime role was marked by a salutary sense of the limits of its influence, as the great constitutional questions of the day were being resolved at the cannon’s mouth. Few foresaw that war’s end would bring with it as great an expansion of judicial power as Marshall had accomplished in his first two decades.

William R. Castro, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (1995). David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (1985). Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978). Julius Goebel, Jr., History of the Supreme Court of the United States, vol. 1, Antecedents and Beginnings to 1801 (1971). Charles G. Haines, The Role of the Supreme Court in American Government and Politics, 1789–1835 (1944). George L. Haskins and Herbert A. Johnson, History of the Supreme Court of the United States, vol. 2, Foundations of Power: John Marshall, 1801–15 (1981). Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development 1835–1874 (1982). Peter Karsten, Heart versus Head: Judge-made Law in Nineteenth-century America (1997). R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985). R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (2001). Carl B. Swisher, History of the Supreme Court of the United States, vol. 5, The Taney Period, 1836–1864 (1974). Charles Warren, The Supreme Court in United States History, rev. ed. (1931). G. Edward White, History of the Supreme Court of the United States, vols. 3–4, The Marshall Court and Cultural Change, 1815–35 (1988).

William M. Wiecek